Asked and Answered: Your Paid Leave Compliance Questions

By Jana Bjorklund (Intro by Kris Janisch)
Published Oct. 11, 2019

Answers to Paid Leave Compliance Questions

To help employers better understand the latest paid leave laws, Jana Bjorklund — GovDocs’ Senior Counsel, Employment Law — recently hosted a webinar, The Puzzle of Paid Leave. In it, she takes a detailed look at the varied aspects of these laws.

Paid leave for any reason, paid sick leave, paid family and medical leave… Cities, counties, states… Complicated, isn’t it?

To help employers better understand these laws, Jana Bjorklund — GovDocs’ Senior Counsel, Employment Law — recently hosted a webinar, The Puzzle of Paid Leave. In it, she takes a detailed look at the varied aspects of paid leave laws in all their forms.

Several of our webinar attendees had questions during the webinar, which Bjorklund answers below.

Paid Leave for Any Reason

Director, HR Services: Does PTO count as paid time off under leave for any reason?

Paid Leave Webinar 2019 Bjorklund: If an employer has a PTO policy under which time can be taken for any reason — and meets the other requirements under the applicable law such as accrual rate, carryover, etc. — then yes, it would generally qualify as leave for any reason.

Sr. Human Resources Compliance Manager: For Nevada — would documentation be able to be requested if the time off is more than three days? Or are employers unable to ask for this at any point in the 40 hours (five days) of paid leave?

Bjorklund: The Nevada paid leave law does not address this issue.

The Nevada law states that employees may use their paid leave for any reason and without providing a reason to the employer. Since the employee can use it for non-medical reasons — and if the employer does not know why the employee is using the time off — it may not be appropriate to ask for documentation – especially if the employee took the time off for non-medical reasons.  You may want to reach out to your legal counsel if you have questions about a specific situation.

HR Operations Manager: For Maine, do you need to have more than 10 employees in Maine or just more than 10 company-wide?

Bjorklund: The Maine paid leave law simply states it applies to employers with at least 10 employees who work more than 120 hours in a calendar year (except for seasonal workers).

The Maine DOL is required to provide rules for the implementation and enforcement of this law, which will be effective in 2021. These rules should provide more clarity for employers. We are watching for this and will provide additional detail on this when these rules are adopted.

Paid Sick Leave

Payroll Manager: Is the paid sick leave law in Austin, Texas, still unconstitutional?

Bjorklund: Currently, the question of whether Austin’s paid sick leave law is constitutional is pending on appeal before the Texas Supreme Court. We are watching this case and will provide information on our blog when the decision from the court is made.

Sr. Human Resources Coordinator: We provide paid sick time for salaried employees, 40 hours per year max. However, there is no formal written policy. If our “unwritten” policy is the same as a state policy, does it still trump the state policy? Or does there need to be a formal written policy in place?

Bjorklund: Whether additional aspects of the paid sick leave law apply to you will depend on the specific jurisdiction. Some of the laws indicate the law is not applicable to employers who provide the same benefits. Other laws simply state that the employer does not need to provide additional time off. In such circumstances, other provisions of the law may still apply.

Paid Family and Medical Leave

Leave Administrator: If an employee is eligible for Washington, D.C., Paid Leave and FML, is the employee still able to use the maximum eight weeks under D.C. law and use the other four under FML?

Paid Family and Medical Leave Map September 2019Bjorklund: Yes. The state-specific paid family and medical leave laws all coordinate with the federal Family Medical Leave Act.

Assuming the employee had taken no other family medical leave in the year — and the reason for leave qualifies for both the D.C. PFL and federal FML — then the employee would be eligible for a total of 12 weeks protected family leave. This would include the eight weeks paid leave under D.C. law and four weeks unpaid leave under the federal law.

Business Owner: Are employers allowed to pay “top-up” payments to family medical leave benefits as long as the combined total does not exceed 100 percent of the employee’s gross pay?

Bjorklund: Employers may always provide more generous benefits than required under employment laws. Any employer who wants to implement a policy to top up employee’s wages while on family medical leave so that the employee receives 100 percent of wages while on leave is free to do so.

Benefits Administrator: Do you have to be out a certain amount of time to apply for New York Paid Family Leave? If an employee only needs a few days off, can they apply?

Bjorklund: Yes, an employee can apply for New York Paid Family Leave for a few days leave for qualifying events.

Paid Family Leave in New York can be taken intermittently but must be taken in full-day increments. If an employee takes intermittent leave and there is more than three months between days off, then it is considered a new claim under the law and the employee will need to submit a new request for Paid Family Leave.

Integrated Workers Comp and LOA Manager: For paid family leave in California, must the six weeks be taken within a calendar year?

Bjorklund: The six weeks of paid family leave in California must be taken within a 12-month period.

HR Director: If an employer is located in New York State, but the employee(s) live in Connecticut, which state applies for paid family leave?

Bjorklund: Generally, the paid family leave laws are benefits for the individuals who work in the state where the law is passed.  It does not matter where the employer is headquartered or where the employee lives.  The law where the employee works is the one that applies.   If your employee lives in Connecticut but works in New York where the employer is located, the New York Paid Family Leave will apply.

Sr. HR Communication Specialist: Regarding the Massachusetts law, would I be considered a Massachusetts employer if I’m headquartered in Michigan and only have a handful of employees who live and work in Massachusetts? What constitutes being a Massachusetts employer, affected by this latest law (which needs employee signatures by Sept. 30, 2019)?

Bjorklund: If you have employees who work in Massachusetts, you need to comply with the Massachusetts Paid Family Leave law for those employees, unless you are one of the excluded employers under the law.

This Labor Law News Blog is intended for market awareness only, it is not to be used for legal advice or counsel.

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